Connect with us

Features

Legal implications of Aragalaya protests

Published

on

By Dharshan Weerasekera

The ‘Aragalaya protests,’ by which I mean the protests that started in mid-March and culminated in the storming of the President’s House, and the Presidential Secretariat on 09 July, leading to the subsequent resignation of the President, have been praised by many commentators as a triumph of democracy, and a resounding affirmation of the rights of the people. However, there is another perspective that one must consider at least for the sake of argument, namely, that the events in question demonstrate the supplanting of the rule of law, in our country by the rule of the mob.

There is very little discussion of this second perspective in local academic journals and newspapers, and it is in the public interest to start one. I argue that the protests are illegal because they contravene the letter and spirit of the Constitution, embodied in Articles 3 and 4 thereof, which I will explain more fully. I argue further that some fans of the protests are using a version of the ‘social contract theory,’ associated chiefly with the seminal thinkers Thomas Hobbes, John Locke and Rousseau, to defend them.

It is vital that both the above matters be brought to the attention of the public because there is a danger that if they go unchallenged, they might creep into formal academic discourse and perhaps even into judicial rulings in the future, with devastating consequences. In this article, I shall briefly explain: a) why the ‘Aragalaya’ protests are illegal and, b) why the application of social contract theory to the protests is fallacious.

The constitutional argument

Arguably, the most important clauses in the Sri Lankan Constitution are Articles 3 and 4. Article 3 states: “In the Republic of Sri Lanka sovereignty is in the People and inalienable.” So, it identifies the ultimate basis of the Constitution’s authority and by extension its validity. Meanwhile, Article 4 enumerates the specific ways in which the people are to exercise their sovereignty, for instance, legislative power through a Parliament comprising of elected representatives, executive power through a President elected by the people, the franchise directly by the people and so on.

The necessary implication of an enumeration such as the above is that if the people wish to exercise their sovereignty, including changing the government, they must do so through the specific means spelled out in Article 4. The Constitution does not recognize any other ways through which the people may exercise their sovereignty, for instance, through popular uprisings and other such means. Nor does it reserve to the people the right to invent such means. To suppose otherwise would be to hold that the Constitution, the ‘Supreme Law of the Land,’ is supreme only when it is convenient for people to consider it so.

The above argument is strengthened when one considers what might be the possible obligations of the citizens towards the state. It is well-known that “rights always go hand in hand with responsibilities.” Sri Lanka is by and large a welfare state and almost the entire gamut of essential services is heavily if not entirely subsidized by the state. We have free healthcare, free education, farm subsidies and so on. The state is also the largest employer. Without a doubt, the persons who participated in the protests, if they were citizens of Sri Lanka, would have benefited to some degree or other from these services in the course of their lives.

In these circumstances, the question is whether at a time as the state was in financial difficulties at least partly as a result of factors beyond its control such as the costs of facing a pandemic and also the Easter Sunday terrorist attacks that crippled tourism, one of the pillars of the economy, it would have been more reasonable for the protesters to exercise some patience, instead of taking to the streets immediately, and calling for the ouster of the government?

To digress a moment, there is an extraordinary passage in Plato’s ‘Crito’ that speaks to the above question and it is worthwhile quoting it at length. The background to the passage is as follows: The Athenian Assembly had sentenced Socrates to death for allegedly “corrupting the youth” with his philosophizing. He was in jail awaiting execution. A group of his friends, led by Crito, arrange an escape for him and Crito visits the prison to tell him about the plan.

But Socrates refuses the offer. The essence of his argument is that as an Athenian citizen he had benefitted from the state throughout his life. Now, when the state had punished him, it would be wrong for him to turn his back on the state, even though the punishment might be unjust. He says,

“Imagine that I am about to play truant, and the laws and the government come and interrogate me: “Tell us, Socrates:, they say, “what are you about?” Are you not going by an act of yours to overturn us—the laws, and the whole state, as far as in you lies? Do you imagine that a state can subsist and not be overthrown, in which the decisions of law have no power, but are set aside and trampled upon by individuals?” He goes on…

“Then, the laws will say, “Consider, Socrates, if we are speaking truly that in your present attempt you are going to do us an injury. For, having brought you into the world, and nurtured and educated you, and given you and every other citizen a share in every good we had to give, we further proclaim to any Athenian by the liberty which we allow him, that if he does not like us when he has become of age and has seen the ways of the city, and made our acquaintance, he may go where he pleases and take his goods with him. None of us laws will forbid him or interfere with him. Anyone who does not like us and the city, and who wants to emigrate to a colony or to any other city, may go where he likes, retaining his property.” (‘Crito’, Complete Dialogues of Plato, (trans. Benjamin Jowett) London, 1952, p. 217)

At the time of the protests, all of the means provided by the Constitution for changing the government were available to the citizens of this country. Now, a critic might say that it would have taken too long to exercise those means, for instance, if people were to wait for two years, until the next elections, the country would have been ruined. But then, the means to change the times for elections were also available. To my knowledge, the government had made no attempt to suspend the Constitution or any part thereof.

Also, Socrates’ point, although made in a different context, is highly relevant here. If any citizen was dissatisfied with the prevailing situation, they had the option of leaving. In these circumstances, was it lawful for the protesters to storm the President’s House and Secretariat and forcibly evict the President, from those premises, and, shortly afterwards, the country, leading to his subsequent resignation? In my opinion, the conclusion is inescapable that the said act is illegal.

Social Contract Theory as a defence for the protests

A perusal of commentary on the protests shows that many writers rely on a version of the “social contract theory” to defend them. In my view, their stance is untenable because of the following reasons. “Social contract theory,” is chiefly associated with Thomas Hobbes (1588-1679), John Locke (1632-1704) and Jean Jacques Rousseau (1712-1778). As far as I am aware, the idea behind the theory is that at the very inception of a state, the people enter into a contract with their rulers whereby the former surrender a portion of their sovereignty to the rulers in exchange for the rulers ensuring the security and welfare of the people.

If the rulers fail to fulfill their end of the deal, the people would be justified in ousting them. Locke famously says in “An Essay Concerning Civil Government”: “Whenever law ends, tyranny begins. If the law be transgressed to another’s harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command to compass that upon the subject which the law allows not, ceases in that to be a magistrate, and acting without authority may be opposed, as any other man who by force invades the rights of another.” (‘An Essay Concerning Civil Government’, p. 71)

As mentioned earlier, some commentators try to defend the protests by resort to a version of the above argument. According to them, the former President exceeded his authority or in some other way reneged on his obligations to the people and hence the people had a right to oust him. However, leaving aside the question whether such a dereliction of duty in fact happened, Locke’s argument can be distinguished from the Sri Lankan situation very clearly.

Locke, Hobbes and Rousseau were responding to the fundamental transformations that were taking in the political systems of their respective countries. In the case of Hobbes and Locke, it was to the transition from a monarchy to a constitutional monarchy that was taking place in England over the course of the 17th century and in the case of Rousseau it was to the transition from a monarchy to a Republic symbolized by the French Revolution.

Each thinker, in his own way, was trying to find a way to legitimize the emerging political order. In order to do this, they introduced the notion that the ultimate authority in the state comes from the people, as opposed to the monarch who at the time was understood as deriving his authority from God. In sum, social contract theory applies to situations where new political systems are being formed, not to convulsions in such systems once theyare formed. For instance, if people can topple the government at will, what is the point of having elections?

Democracy is understood as rule by the consent of the people. If one accepts that the way in which this consent is expressed is though elections, then changing governments, other than through constitutionally prescribed methods, createsthe potential for perpetual instability in the state and thereby negates the very purpose for which the social contract is purportedly formed, namely, ensuring the security and well-being of the people.

Conclusion

Sri Lankans must decide whether they want to live in a country where the rule of law prevails or, ultimately, the rule of the mob. If the former, they need to reflect deeply about what happened in the course of the protests and devise constitutional means to prevent such things from repeating.

(The writer is an Attorney-at-Law)



Continue Reading
Click to comment

Leave a Reply

Your email address will not be published. Required fields are marked *

Features

Breathtaking new paintings found at ancient city of Pompeii

Published

on

By

The frescoes depict Greek mythology: Paris kidnaps Helen which triggers the Trojan War (BBC)

Stunning artworks have been uncovered in a new excavation at Pompeii, the ancient Roman city buried in an eruption from Mount Vesuvius in AD79.

Archaeologists say the frescoes are among the finest to be found in the ruins of the ancient site.

Mythical Greek figures such as Helen of Troy are depicted on the high black walls of a large banqueting hall.

The room’s near-complete mosaic floor incorporates more than a million individual white tiles.

BBC/Tony Jolliffe The Black Room

The black room has only emerged in the last few weeks. Its white mosaic floor is almost complete (BBC)

A third of the lost city has still to be cleared of volcanic debris. The current dig, the biggest in a generation, is underlining Pompeii’s position as the world’s premier window on the people and culture of the Roman empire.

Park director Dr Gabriel Zuchtriegel presented the “black room” exclusively to the BBC on Thursday.

It was likely the walls’ stark colour was chosen to hide the smoke deposits from lamps used during entertaining after sunset. “In the shimmering light, the paintings would have almost come to life,” he said.

Two set-piece frescoes dominate. In one, the god Apollo is seen trying to seduce the priestess Cassandra. Her rejection of him, according to legend, resulted in her prophecies being ignored.The tragic consequence is told in the second painting, in which Prince Paris meets the beautiful Helen – a union Cassandra knows will doom them all in the resulting Trojan War.

BBC/Tony Jolliffe One of the "black room" frescos discovered in Pompeii, showing Apollo trying to seduce the priestess Cassandra

The god Apollo is depicted on one of the frescos trying to seduce the Trojan priestess Cassandra (BBC)

The black room is the latest treasure to emerge from the excavation, which started 12 months ago – an investigation that will feature in a documentary series from the BBC and Lion TV to be broadcast later in April.

A wide residential and commercial block, known as “Region 9”, is being cleared of several metres of overlying pumice and ash thrown out by Vesuvius almost 2,000 years ago.

Staff are having to move quickly to protect new finds, removing what they can to a storeroom.

For the frescoes that must stay in position, a plaster glue is injected to their rear to prevent them coming away from the walls. Masonry is being shored up with scaffolding and temporary roofing is going over the top.

BBC/Tony Jolliffe Fresco protection

A plaster glue must be injected behind a fresco or it is likely to come away from the wall (BBC)

Chief restorer Dr Roberta Prisco spent Tuesday this week trying to stop an arch from collapsing. “The responsibility is enormous; look at me,” she said, as if to suggest the stress was taking a visible toll on her. “We have a passion and a deep love for what we’re doing, because what we’re uncovering and protecting is for the joy also of the generations that come after us.”

BBC Map showing excavations in Pompeii

Region 9 has thrown up a detective story for archaeologists.

Excavations in the late 19th Century uncovered a laundry in one corner. The latest work has now revealed a wholesale bakery next door, as well as the grand residence with its black room.

BBC/Tony Jolliffe Reception Hall

In the reception hall, rubble in the far right corner is from renovation at the time of the eruption (BBC)

The team is confident the three areas can be connected, physically via the plumbing and by particular passageways, but also in terms of their ownership.

The identity of this individual is hinted at in numerous inscriptions with the initials “ARV”. The letters appear on walls and even on the bakery’s millstones.

Dr Sophie Hay explained how a rich politician left his mark on the buildings

“We know who ARV is: he’s Aulus Rustius Verus,” explained park archaeologist Dr Sophie Hay. “We know him from other political propaganda in Pompeii. He’s a politician. He’s super-rich. We think he may be the one who owns the posh house behind the bakery and the laundry.” What’s clear, however, is that all the properties were undergoing renovation at the time of the eruption. Escaping workers left roof tiles neatly stacked; their pots of lime mortar are still filled, waiting to be used; their trowels and pickaxes remain, although the wooden handles have long since rotted away.

Dr Lia Trapani catalogues everything from the dig. She reaches for one of the thousand or more boxes of artefacts in her storeroom and pulls out a squat, turquoise cone. “It’s the lead weight from a plumb line.” Just like today’s builders, the Roman workers would have used it to align vertical surfaces.

She holds the cone between her fingers: “If you look closely you can see a little piece of Roman string is still attached.”

BBC/Tony Jolliffe Plumb line

It’s possible to see a remnant piece of string around the neck of the plumb line (BBC)

Dr Alessandro Russo has been the other co-lead archaeologist on the dig. He wants to show us a ceiling fresco recovered from one room. Smashed during the eruption, its recovered pieces have been laid out, jigsaw-style, on a large table.

He’s sprayed the chunks of plaster with a mist of water, which makes the detail and vivid colours jump out.

You can see landscapes with Egyptian characters; foods and flowers; and some imposing theatrical masks.

“This is my favourite discovery in this excavation because it is complex and rare. It is high-quality for a high-status individual,” he explained.

BBC/Jonathan Amos Ceiling fresco

The archaeologists have had to piece together a ceiling fresco that was shattered during the volcanic eruption (BBC)

But if the grand property’s ceiling fresco can be described as exquisite, some of what’s being learned about the bakery speaks to an altogether more brutal aspect of Roman life – slavery.

It’s obvious the people who worked in the business were kept locked away in appalling conditions, living side by side with the donkeys that turned the millstones. It seems there was one window and it had iron bars to prevent escape.

It’s in the bakery also that the only skeletons from the dig have been discovered. Two adults and a child were crushed by falling stones. The suggestion is they may have been slaves who were trapped and could not flee the eruption. But it’s guesswork.

“When we excavate, we wonder what we’re looking at,” explained co-lead archaeologist Dr Gennaro Iovino.

“Much like a theatre stage, you have the scenery, the backdrop, and the culprit, which is Mount Vesuvius. The archaeologist has to be good at filling in the gaps – telling the story of the missing cast, the families and children, the people who are not there anymore.”

BBC/Tony Jolliffe Mosaic floor
There are certainly more than a million tiles in the mosaic floor, possibly up to three million (BBC)
BBC/Tony Jolliffe Roman lamp
Boxes full of artefacts: One of the many oil lamps recovered during the excavation (BBC)
BBC/Tony Jolliffe Fresco showing Leda and the Swan
Another fresco depicts Leda and Zeus in the form of a swan, whose union would lead to Helen’s birth (BBC)
BBC/Tony Jolliffe A piece of moulded cornicing painted in bright colours
Brilliant colours: Ornate cornicing was also preserved under the volcanic debris (BBC)
Continue Reading

Features

Democracy continuing to be derailed in South Asia

Published

on

A scene from Sri Lanka’s ‘Aragalaya’ of 2022.

Sections of progressive opinion in Sri Lanka are currently commemorating the second anniversary of the country’s epochal ‘Aragalaya’, which brought down the dictatorial and racist Gotabhaya Rajapaksa regime. April 9th 2022 needs to be remembered especially as the date on which Sri Lankans in their tens of thousands, irrespective of ethnic, religious and language differences rose as one to impress on the country’s political class and rulers that their fundamental rights cannot be compromised or tampered with for whatever reason and that these rights should be realized henceforth.

During the ‘Aragalaya’, Sri Lanka attained nationhood, since the totality of the country’s social groups, standing shoulder-to-shoulder, spoke out for equity and equality among them, from the same platform. Thus was Sri Lankan nationhood born, which is quite different from statehood. It is left to progressives to ensure that Sri Lankan nationhood, thus born out of the ‘Aragalaya’, does not prove to be stillborn.

To express it briefly, political ‘Independence’ or statehood is believed by most Sri Lankans to have been attained in 1948 but this is not tantamount to achieving nationhood. The latter is realized when equity and equality are established among a country’s communities.

Of course, we are a long way from achieving these aims but the historic significance of the ‘Aragalaya’ consists in the fact that the ideals central to nationhood were articulated assertively and collectively in Sri Lanka as never before. The opinion climate conducive to nation-building, it could be said, was created by the ‘Aragalaya’.

It is left to the progressives of Sri Lanka to forge ahead with the process of realizing the ideals and central aims of the ‘Aragalaya’, without resorting to violence and allied undemocratic approaches, which are really not necessary to bring about genuine democratic development.

The ‘Aragalaya’ was a historic ‘wake-up’ call to the country’s political elite in particular, which, over the years could be said to have been engaged more in power aggrandizement, rather than nation-building, which is integral to democratic development. Given this bleak backdrop, it amounts to a huge joke for any prominent member of the country’s ruling class to make out that he has been ‘presiding over the only country in Asia where democracy is completely safeguarded.’

To begin with, a huge question mark looms over Sri Lanka’s true constitutional identity. It is not a fully-fledged parliamentary democracy in view of the substantive and sweeping powers wielded by the Executive Presidency and this issue has been discussed exhaustively in this country.

On the other hand, Sri Lanka is not free of strong theocratic tendencies either because there is no clear ‘separation wall’, so to speak, between religion and politics. The fact is that Sri Lanka’s rulers are constitutionally obliged to defer to the opinion of religious leaders. Therefore, Sri Lanka lacks a secular foundation to its political system. This columnist is inclined to the view that in terms of constitutional identity, Sri Lanka is ‘neither fish, flesh nor fowl.’

Moreover, the postponement of local and Provincial Council polls in Sri Lanka by governments alone proves that what one has in Sri Lanka is at best a ‘façade democracy’.

derailing democracy in Sri Lanka goes Religious and ethnic identities in particular continue to be exploited and manipulated by power aspirants and political entrepreneurs to the huge detriment of the countries concerned.

Needless to say, such factors are coming into play in the lead-up to India’s Lok Sabha polls. They are prominent in Pakistan, Sri Lanka and Bangladesh as well. Statesmanship is a crying need in these societies but nurturing such leaders into existence will prove a prolonged, long term project, which also requires the interplay of a number of vital factors, many of which are not present to the desired degree in the countries concerned.

However, of the ‘South Asian Eight’, India is by far the most advanced democracy. It has a Constitution that explicitly enshrines the cardinal rights of the people, for example, including the very vital Right to Life. Such a right is non-existent in the Sri Lankan Constitution, for instance, and this is a huge drawback from the viewpoint of democratic development. Among other things, what this means is that the Sri Lankan state exercises substantive coercive power over its citizens.

On the other hand, the Indian Supreme Court has time and again creatively interpreted the Right to Life, so much so life-threatening conditions faced by Indian citizens, for instance, have been eliminated through the caring and timely intervention of the country’s judiciary. Sri Lanka needs to think on these things if it intends to entrench democratic development in the country. Thus far, the country’s track record on this score leaves much to be desired.

A predominant challenge facing progressives of South Asia, such as the ‘Aragalaists’ of Sri Lanka, is how to forge ahead with the task of keeping democratization of the state on track. A negative lesson in this connection could be taken from Bangladesh where the ideals of the 1971 liberation war under Shiekh Mujibhur Rahman were eroded by subsequent regimes which exploited divisive religious sentiments to come to power. In the process, religious minorities came to be harassed, persecuted and savaged by extremists in the centre.

Whereas, the founding fathers of Bangladesh had aimed to create a secular socialist state, this was not allowed to come to pass by some governments which came to power after the Sheikh, which sought to convert Bangladesh into a theocracy. A harrowing account of how the ideals of 1971 came to be betrayed is graphically provided in the international best seller, ‘Lajja’ by Taslima Nasrin, the exiled human and women’s right activist of Bangladesh.

At page 60 of the 20th anniversary edition of ‘Lajja’, published by Penguin Books, Nasrin quotes some persons in authority in Bangladesh as telling the country’s Hindus during the religious riots of 1979; ‘The government has declared that Islam is the state religion. If you want to stay in an Islamic country all of you must become Muslims. If you don’t become Muslims you will have to run away from this country.’

Not all the post-liberation governments of Bangladesh have turned against the ideals of 1971 and the present government is certainly not to be counted as one such administration. But the lesson to be derived from Bangladesh is that unless progressive opinion in a secular democracy is eternally vigilant and proactively involved in advancing democratic development, a country aiming to tread the path of secularism and democracy could easily be preyed upon by the forces of religious extremism.

Continue Reading

Fashion

Homemade…to beat the heat

Published

on

With lots of holidays cropping up, we are going to be on the move. Ok, that’s fine, but what about the scorching heat! With temperatures soaring sky high, skin issues are bound to surface.

Well, here are some beauty tips that will give your skin some relief:

Aloe Vera: Apply fresh aloe vera gel to the skin. It helps to soothe and heal sunburn. Aloe vera contains zinc, which is actually anti-inflammatory.

Papaya: Papaya pulp can be applied on the skin like a mask, washing it off after 20 minutes. Papaya contains enzymes and helps to remove dead skin cells. Add curd or lemon juice to the pulp to remove tan. Fruits like banana, apple, papaya and orange can be mixed together and applied on the face. Keep it on for 20 to 30 minutes. Papaya helps to cleanse dead skin cells. Banana tightens the skin. Apple contains pectin and also tones the skin. Orange is rich in Vitamin C. It restores the normal acid-alkaline balance.

 Lemon Juice: Lemon is a wonderful home remedy for sun tan because of its bleaching properties. You can apply lemon juice by mixing it with honey on the tanned skin and leave it for 10 to 15 minutes before washing it off .

Coconut Water and Sandalwood Pack: Sandalwood has great cleansing properties, whereas, coconut water is widely known for a glowing skin. Mix coconut water with one tablespoon of sandalwood powder to make a thick mixture and apply it all over the face. Wash it off after 20 minutes. This is a perfect cure for tanned skin.

Cucumber, Rose Water and Lemon Juice:The cucumber juice and rose water work as a cooling means for soothing the brown and red-spotted skin. To use these effectively, take one tablespoon of cucumber juice, lemon juice, and rose water and stir it well in a bowl. Use this solution on all over the face and wash it off with cold water after 10 minutes. This helps to turn your skin hale and healthy.

Milk Masks: Yes, milk masks do give glowing effect to tired skin. Just apply milk mixed with glycerin all over the face. Relax for 15 minutes and rinse with water. The treatment softens, rejuvenates and restores a natural PH balance, thus protecting the skin from the negative effects of the sun. You can also take half cup of milk and add a pinch of turmeric in it. Apply the mixture on your face and wait till it gets dry. Use this solution on a daily basis for exceptional results.

(Yes, time to take care of your skin and beat the heat!)

Continue Reading

Trending